Las Vegas Sands Corp. v. ck man
Claim Number: FA2306002047551
Complainant is Las Vegas Sands Corp. (“Complainant”), represented by Michael J. McCue, US. Respondent is ck man (“Respondent”), PH.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <balirenxgvip888.com>, registered with Gname.com Pte. Ltd..
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
Richard Hill as Panelist.
Complainant submitted a Complaint to Forum electronically on June 5, 2023; Forum received payment on June 5, 2023.
On June 7, 2023, Gname.com Pte. Ltd. confirmed by e-mail to Forum that the <balirenxgvip888.com> domain name is registered with Gname.com Pte. Ltd. and that Respondent is the current registrant of the name. Gname.com Pte. Ltd. has verified that Respondent is bound by the Gname.com Pte. Ltd. registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On June 9, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 29, 2023 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@balirenxgvip888.com. Also on June 9, 2023, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, Forum transmitted to the parties a Notification of Respondent Default.
On July 10, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Richard Hill as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant states that it owns and operates world-renowned integrated resorts in Macau and Singapore. It currently operates the Venetian Macao, Sands Macao, The Londoner Macao, The Plaza Macao and Four Seasons Hotel Macao, and The Parisian Macao; and the Marina Bay Sands in Singapore. In September of 2012, Complainant announced plans for The Parisian, a resort hotel and casino in Macau. The Parisian features approximately 3,000 rooms and suites, gaming space, a retail mall, and a replica Eiffel Tower. Complainant has rights in the THE PARISIAN mark through its registration in multiple jurisdictions dating back to 2013, including in Macau. Complainant also has rights in the 澳 门 巴 黎 人 mark (which translates to “Macao Parisian” in English) through its registration in Hong Kong in 2013.
Complainant alleges that the disputed domain name is identical or confusingly similar to its 澳 门 巴 黎 人 mark as it contains the word “baliren”, which is the Pinyin phonetic transliteration of 巴 黎 人, while adding letters, numbers, and the “.com” generic top-level domain (“gTLD”). Complainant cites UDRP precedents to support its position.
According to Complainant, Respondent lacks rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized or licensed Respondent to use its mark. Respondent does not use the disputed domain name for a bona fide offering of goods or services, or a legitimate noncommercial or fair use. Instead, the resolving webpage displays Complainant’s mark and distinctive logo and pay-per-click advertising hyperlinks for services that compete with those of Complainant. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. The resolving webpage displays Complainant’s mark and distinctive logo and pay-per-click advertising hyperlinks for competing services. Respondent registered the disputed domain name with actual knowledge of Complainant’s rights in its mark. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns and operates world-renowned integrated resorts. Complainant has rights in the THE PARISIAN mark through its registration in 2013; Complainant also has rights in the 澳 门 巴 黎 人 mark (which translates to “Macao Parisian” in English) through its registration in 2013.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The disputed domain name was registered in 2023.
The resolving website displays Complainant’s mark and distinctive logo and advertising links to products and services that compete with those of Complainant.
Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."
Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
The disputed domain name contains the word “baliren”, which is the Pinyin phonetic transliteration of 巴 黎 人 (which translates to “Parisian” in English), while adding letters, numbers, and the “.com” generic top-level domain (“gTLD”). Complainant’s 澳 门 巴 黎 人 mark translates to “Parisian Macao” in English. Thus the disputed domain name incorporates a phonetic rendering of the “Parisian” element of Complainant’s mark and it merely omits the transliteration of the geographically descriptive characters for Macau. Under Policy ¶ 4(a)(i), incorporating a word with the same phonetic translation as a portion of the mark while adding letters and numbers as well as the “.com” gTLD is insufficient in differentiating from the mark. See Dow Corning Corp. v. zhongshan daokangning youjigui co.ltd, FA 1519356 (Forum Nov. 4, 2013) (finding the <daokanning.com> domain name to be a confusingly similar Pinyin phonetic transliteration of complainant’s DOW CORNING mark in Chinese characters despite omitting hyphens and an additional letter “g” from the correct transliteration, “dao-kang-ning.”); see also J.P. Commc’ns, Inc. v Mainstream Adver., FA 1270452 (Forum July 11, 2009) (concluding that respondent’s substitution of the word “ten” in the complainant’s TOP TEN WHOLESALE mark for the numeral “10” in the <top10wholesale.com> domain name did not sufficiently distinguish respondent’s domain name from complainant’s mark due to their phonetic similarities); see also Am. Online, Inc. v. Triple E Holdings Ltd., FA 281584 (Forum July 15, 2004) (“Words that are spelled differently but are phonetically similar do not negate the confusing similarity of Respondent’s domain name pursuant to Policy ¶ 4(a)(i).”); see also ADP, LLC. v. Ella Magal, FA 1773958 (Forum August 2, 2017) (“Respondent’s <workforce-now.com> domain name appropriates the dominant portion of Complainant’s ADP WORKFORCE NOW mark and adds a hyphen and the gTLD “.com.” These changes do not sufficiently distinguish the disputed domain name from the ADP WORKFORCE NOW mark.”); see also Tesco Pers. Fin. Ltd. v. Domain Mgmt. Servs., FA 877982 (Forum Feb. 13, 2007) (holding that “the [<tescofinance. com>] Domain Name is confusingly similar to Complainant’s ‘TESCO PERSONAL FINANCE’ mark in that it merely omits the descriptive term ‘personal.’”); see also Am. Eagle Outfitters, Inc. v. Admin, FA 473826 (Forum June 22, 2005) (finding the <americaneaglestores.com> domain name to be confusingly similar to the complainant’s AMERICAN EAGLE OUTFITTERS mark because the domain name and the mark share the same dominant features); see also Home Depot Product Authority, LLC v. Angelo Kioussis, FA 1784554 (Forum June 4, 2018) (“The domain name contains the mark in its entirety, with only the addition of the generic letters ‘sb’ and the digits ‘2018,’ plus the generic Top Level Domain (“gTLD”) ‘.com.’ These alterations of the mark, made in forming the domain name, do not save it from the realm of confusing similarity under the standards of the Policy.”).
While the term “Parisian” is not particularly distinctive, according to 1.7 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Jurisprudential Overview 3.0”): “In specific limited instances, while not a replacement as such for the typical side-by-side comparison, where a panel would benefit from affirmation as to confusing similarity with the complainant’s mark, the broader case context such as website content trading off the complainant’s reputation, … may support a finding of confusing similarity.”
Here, Complainant presents evidence showing that the resolving website contains elements likely intended to make consumers believe that Respondent’s site is somehow affiliated with Complainant. This supports the side-by-side comparison above.
For all the above reasons, the Panel finds that the disputed domain name is confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i).
Complainant has not licensed or otherwise authorized Respondent to use its mark. Respondent is not commonly known by the disputed domain name: under Policy ¶ 4(c)(ii), relevant WHOIS information may demonstrate that a Respondent is not commonly known by a disputed domain name. See Farm Mutual Automobile Insurance Company v. Dale Anderson, FA1504001613011 (Forum May 21, 2015) (concluding that because the WHOIS record lists “Dale Anderson” as the registrant of the disputed domain name, the respondent was not commonly known by the <statefarmforum.com> domain name pursuant to Policy ¶ 4(c)(ii)). Here, the WHOIS information identifies the registrant of the disputed domain name as “ck man”. Thus the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
The resolving website displays advertising hyperlinks for services that compete with those of Complainant. Use of a domain name to redirect users to unrelated third-party sites (whether or not they compete with Complainant) is not a bona fide offering of goods or services or a legitimate noncommercial or fair use. SeeTrulia, Inc. v. Armen A, FA1586491 (Forum Dec. 2, 2014) (finding that a parked page containing pay-per-click advertising links that resolve to the websites of Complainant’s competitors did “not constitute a Policy ¶ 4(c)(i) bona fide offering of goods or services, or a Policy ¶ 4(c)(iii) legitimate noncommercial fair use”); see also Constellation Wines U.S., Inc. v. Tex. Int’l Prop. Assocs., FA 948436 (Forum May 8, 2007) (finding that the respondent had no rights or legitimate interests under Policy ¶¶ 4(c)(i) or 4(c)(iii) by using the disputed domain name to operate a website featuring links to goods and services unrelated to the complainant); see also Coachella Music Festival, LLC v. josh greenly / All Access Tickets, FA1507001629217 (Forum August 10, 2015) (finding that the respondent had failed to provide a bona fide offering of goods or services or a legitimate noncommercial or fair use of the disputed domain name as required under Policy ¶ 4(c)(i) and Policy ¶ 4(c)(iii), where the respondent was using the disputed domain name to host a web page that featured links to services that competed with those of the complainant). Thus the Panel finds that Respondent fails to use the disputed domain name to make a bona fide offering of goods or services, or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or 4(c)(iii)). And the Panel finds that Respondent does not have rights or legitimate interest in the disputed domain name.
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.
Indeed, Respondent registered the disputed domain name using false WHOIS contact information. The contact details provided for the registrant in the WHOIS are:
Full Name :ck man
Email Address: a9491288000@gmail.com
Address: PH makati pasai maktipasaizhengzhu223
Telephone: +63 9491288000
This is manifestly not a valid mailing address.
According to paragraph 4.8 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Jurisprudential Overview 3.0”), a Panel may conduct limited factual research regarding disputed domain names:
Noting in particular the general powers of a panel articulated inter alia in paragraphs 10 and 12 of the UDRP Rules, it has been accepted that a panel may undertake limited factual research into matters of public record if it would consider such information useful to assessing the case merits and reaching a decision.
This may include visiting the website linked to the disputed domain name in order to obtain more information about the respondent or its use of the domain name, consulting historical resources such as the Internet Archive (www.archive.org) in order to obtain an indication of how a domain name may have been used in the relevant past, reviewing dictionaries or encyclopedias (e.g., Wikipedia), or accessing trademark registration databases.
From publicly available databases, the Panel has found that Zheng Zhou is a city in China, whereas the country code specified in the WHOIS, PH, corresponds to the Philippines, as does the telephone code “+63”. However, there is no “949” area code in the Philippines[i].
Thus the WHOIS information is false, and this can evince bad faith registration and use under Policy ¶ 4(a)(iii). See CNU ONLINE Holdings, LLC v. Domain Admin / Whois Privacy Corp., FA1504001614972 (Forum May 29, 2015) (“As the Panel sees that Respondent has provided false or misleading WHOIS information, the Panel finds bad faith in Respondent’s registration of the disputed domain name per Policy ¶ 4(a)(iii).”); see also ABB Asea Brown Boveri Ltd v. Global Mgr, FA 1702001716963 (NAF Mar. 30, 2017) (“Complainant contends that Respondent provided false contact information while registering the disputed domain. Registering a confusingly similar domain name using false contact information can evince bad faith registration.”); see also j2 Global Canada, Inc. and Landslide Technologies, Inc. v. Vijay S Kumar/Strategic Outsourcing Services Pvt Ltd, FA 1411001647718 (NAF Jan. 4, 2016) (“False or misleading contact information indicates bad faith registration and use.”); see also Chevron Intellectual Property LLC v. Phillip Thomas/Chevron Pacific, FA 1504001615524 (NAF May 29, 2015) (“Complainant’s use of false registration data and its unexplained redirection of the disputed domain name to Complainant’s own website are further indications of such bad faith.”); see also McDonald’s Corp. v. Holy See, FA 0304000155458 (NAF June 27, 2003) (“The Panel finds that Respondent provided false contact information in the registration certificates and that such actions, even though not specifically enumerated in the Policy, may form the basis for a finding of bad faith registration and use.”); see also Mars, Incorporated v. RaveClub Berlin, FA 0106000097361 (NAF July 16, 2001) (providing false registration and contact information for infringing domain names evidenced Respondent’s bad faith). Accordingly, the Panel finds that Respondent registered and is using the disputed domain name in bad faith under Policy ¶ 4(a)(iii).
Further, as already noted, the resolving website displays pay-per-click advertising links to competing services. Under Policy ¶ 4(b)(iv), hosting a domain name to display competing click-through links is evidence of bad faith registration and use. See Guidehouse LLP v. Zhi Chao Yang, FA2209002013476 (Forum Oct. 31, 2022) (“[T]he resolving website displays advertising links to competing services. This constitutes bad faith registration and use under Policy ¶ 4(b)(iv).”); see also block.one v. Negalize Interactive Things, FA 1798280 (Forum Aug. 21, 2018) (“Offering links to competing products or services can demonstrate bad faith under Policy ¶ 4(b)(iii) where a respondent registers a domain name that is confusingly similar to the mark of another.”); see also Capital One Financial Corp. v. DN Manager / Whois-Privacy.Net Ltd, FA1504001615034 (Forum June 4, 2015) (holding that the respondent’s use of the <capitaloneonebank.com> domain name to display links to the complainant’s competitors, such as Bank of America, Visa, Chase and American Express constituted bad faith pursuant to Policy ¶ 4(b)(iv)); see also Capital One Financial Corp. v. Above.com Domain Privacy / Above.com Domain Privacy, FA1501001598657 (Forum February 20, 2015) (“This Panel agrees that Respondent’s use as shown in Exhibits C-D illustrates that Respondent here seeks commercial gain through a likelihood of confusion, as competing hyperlinks have been found to establish evidence of intent to seek commercial gain through referral fees, and thus demonstrates bad faith registration under Policy ¶ 4(b)(iv).”). Therefore the Panel finds that Respondent registered and uses the disputed domain name in bad faith under Policy ¶ 4(b)(iv).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <balirenxgvip888.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: July 10, 2023
[i]
See the national numbering
plan published on the ITU web site at:
https://www.itu.int/oth/T02020000A7/en
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